Inquiry Commissions; do they serve any purpose.docx

8/14/2019 Inquiry Commissions; do they serve any purpose.docx

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INQUIRY COMMISSION( DO THESE COMMISSIONS SERVE ANY

PURPOSE ?)Om Prakash Yadav

Justice M.S.Liberhan Commission which was constituted on 16 th December,1992 to probe the demolition of Babri Masjid, has submitted its voluminousreport to the Prime Minister after 17 years. About 90 Million rupees has been

spent on it. The commission saw 399 sittings and as many as 48 extensions weregiven to it because originally it was asked to give its report within 3 months.

The report now would be tabled on the floor of parliament and likely to trigger adebate on it. Perhaps some more committees would be required to study thethousand pages report and thus the unending process of logical conclusion willstart. In India, there is hardly any inquiry commission on the report of whichconcrete actions have been taken. The coming session of parliament will

perhaps again witness fresh round of allegations and counter allegation betweentreasury and opposition benches.

It is in this backdrop, an attempt has been made to understand the intricacy andlegal stand point of such commissions in this article.

Keeping apart from such allegations and counter allegations, the issue has againcome to fore that Is Inquiry Commission a substitute of criminal prosecution?Do these Commissions serve any purpose? Is it not an eye wash? Are these

Commissions able to bring culprits to book? Etc. After all, they are putting inenormous cost on public exchequer, the hard earned money of ours.

CONSTITUTIONAL AND LEGAL ASPECT- To understand the entire issue,one has to discuss the Commission of Inquiry Act, 1952 itself. Before this Actcame into being, the Government used to order an inquiry by executivenotifications under Public Service Inquiry Act, 1850. Sometimes, they used toenact adhoc and temporary legislations also. To meet the public demand for impartial and judicial inquiries, the Government thought to come out with a

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comprehensive legislation, which resulted into passage of this Commission of Inquiry Act, 1952 in 1952.

Since its enactment, the constitution of Inquiry Commissions has become a toolfor the Government to white wash the public anger and delay and diverts theattention of both public as well as media.

Since Independence, more than a hundred Inquiry Commissions have been setup, but a very few have served the purpose. Reasons are obvious. First, the

provisions enshrined in this Act are not of deterrent in nature and secondly, mostof the time the Commissions are set up under retired Judges for obviousreasons. Section 4 the Act provides for powers and it is clear that theCommission has no power to compel a person to adduce before it and give

evidence. It cannot pass verdicts or judgements which could be enforceable. Thehelplessness is such that when any offence is committed in view of or presenceof Commission, the Commission shall forward the case to the Magistrate for trial as provided in Criminal Procedure code.

The appointment of retired Judges, as head of the Commission is very muchsuitable for the Government. It is not merely a chance that one Judge hasheaded more than one Commission. The public perception is such that theseInquiry Commissions are becoming post retirement placement schemes for the

favourite retired Judges.UNENDING LIST OF COMMISSIONS- We have a long list of suchCommissions, which have made inordinate delay in submitting their reports.Many of them have taken decades in so called conducting inquiries and eventhen the report which was submitted were so voluminous that we requiredanother committee to find out ways to implement the recommendations. For example, as many as ten Commissions or committees have so far been set upwith regard to the anti-Sikh riots in Delhi after the assassination of Mrs Gandhi.

First of all, Marvah Commission (Ved Marvah, Addl C.P.) was set up in November, 1984. The Commission was about to finish the assigned task, but itwas abruptly wounded up in May, 1985 and a new Commission headed byJustice Rangnath Misra was constituted and was asked to carry out the further inquiry hitherto done by Marvah Commission. But surprisingly the terms of reference was, to find out whether this was an organised riot only? ThisCommission submitted its recommendations in August, 1986 and recommendedfor setting up of three committees to do further work. Therefore; Kapur-MittalCommittee in February, 1987, Jain-Banerjee Committee in November, 1987,Potti-Rosa Committee in March, 1990, Jain and Agarwal Committee in

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December, 1990, and finally Justice G.T. Nanavati Commission in 2000 wereset up. Incidentally, the same Judge was made in charge to inquire into Godharaincident. Nanavati has submitted first part of the report and final report is yet tocome. No one knows when this commission will complete its job and whenentire truth and facts related to this incident would be made known to all.

It is needless to mention that what has happened to reports and how muchamount have been spent on these exercises. Has any prominent leader been

punished so far? Many persons, against whom levelled charges were beinginquired into, have died. Such are the frustrating results of these Commissionsand Committees.

Similarly, Justice B.N. Kripal Commission of inquiry was set up on 13 th July,1985 to probe into the bombing of Air India Flight 182 Boeing 747 on 23 rd June1985 which led to crash of this plane into Atlantic Ocean leaving 329

passengers including crew dead. The Commission submitted its report after extensive tours of countries like Canada, USA etc, but when the prosecution

began, nothing could be proved and none could be punished. The entireinvestigation and inquiry went in vain. It is needless again, to calculate theamount which was spent on such inquiries.

After tehelka expose, one Phukan Commission was set up to look into it.Everyone saw the tape on television and the then Government just to avoidimmediate legal course, set up this Commission. In May, 2005 the Newsweek reported that Justice Phukan along with his wife and eight officials used IAF

plane and went to Pune- Mumbai and Shirdi. The Ministry later said that theJudge was not entitled to use the military plane and it was made available tohim by the then government in order to influence the Judge. Such allegationsand incidents definitely erode public faith in such Commissions. The situation is

such every Government in power use this provision to oblige the retired judges.In Bihar for example, one Justice Amir Das Commission was set up to probeinto the alleged connections of political leaders with a banned outfit calledRanveer sena in 1997. After elapse of more than eight years, the Commissioncould hardly do anything except for some tours and recording of statementssome leaders. It was finally wounded up in 2006. Similarly one Justice AliAhmed Commission was set up to look into excess withdrawal in 1996. Whatrecommendations did it submit or what actions had been taken, hardly anyone

knows.

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Commission under Justice RCP Sinha and Justice Samsul was set up onBhagalpur communal riot in 1989. Reports were submitted in 1995. But whenthe new Government came to power it set up NN Singh (retired Justice)Commission to re-investigate the matter again. In 2008 one Commission under retired judge Sadanand Mukherjee was set up to probe into the Kahalgaon

police firing. This commission is still a non starter vis-a-vis investigation of theincidence.

When Kosi eastern embankment was breached on 18 th August, 2008, therewere lot of allegations and counter allegations. The Government constituted aCommission under Rajesh Walia, again a retired Judge to probe into it.

The question that every sensible citizen would like to ask is that, whether

Commission is a substitute of criminal investigation? How can a Judge be better equipped to do forensic test, do scientific investigations than a professionallytrained police officer? Has the Commission power to make arrests to the

persons likely to tamper evidences? The effectiveness of the Commission or for that matter the Commission of Inquiry Act was looked into by two Judgecommission, which was constituted in 1987, it gave its observations and said theAct as ineffective and toothless.

COMMISSION AND INVESTIGATION- Ours is the criminal justice

system, which is based on the twin pillars of investigation and dispensation of justice. How can the Judiciary be asked to do the work of investigation, which isthe work of the State as enshrined the law of the land? The Criminal ProcedureCode and for that matter entire Criminal Justice System is erected on this

principle and perhaps it is due to this principle, that the Judiciary and Executivehave been completely separated in 1973, when the Code of Criminal Procedurewas amended. After almost every police firing or so called fake encounters, thegovernment sets up Commissions of Inquiry and tends to defer the problem soyears. The list of such commissions is long and still names are being added to it.Once the commission is set up, public tends to forget the real issue andCommission embarks on an unending process of investigation, inquiry and factsfinding. It took years and years in submitting the reports, which are sovoluminous that it again requires some committees to suggest measures toimplements the recommendations. What is the use of such reports, whichthemselves are not obligatory and mandatory for the Government to implement.Millions and millions of rupees have so far been spent on these nearly futileexercises, but the investigating agencies are languishing in the same state for

years. Instead of modernising and equipping the investigating agencies, we goon doing cosmetic make ups. Public perception is therefore that, if the

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Government wants to bury the truth, it sets up a Commission. Public memory isshort and it tends to forget everything. In the mean time these Commissions are

becoming a post retirement engagement for Judges. Ours is an independentJudiciary and that is why Article 220 provides for restriction on practise by theretired Judges. The idea is that there should not be any scope whatsoever, of favour or disfavour by the serving Judges. By appointing the retired Judges inthese Commissions or for that matter in any other body is a clear cut violationof the spirit of the Constitution itself. This type of public perception isdetrimental for our democracy as well as Judiciary also. Judges should performthe duty of dispensing judgments only and not do the work of investigation;otherwise the entire edifice of our institutions would start eroding andcrumbling.

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Inquiry Commissions; do they serve any purpose.docx